THE PEOPLE, Plaintiff and Respondent, v. DARYL LAWRENCE MORET, Jr., Defendant and Appellant, 180 Cal. App. 4th 839

Opinion HAERLE, J. I. INTRODUCTION After appellant pled no contest to one charge of possession of a concealed firearm (Pen. Code, § 12025, subd. (a)(2)) and had a second charge dismissed, the court suspended imposition of a prison term and placed him on probation. The court imposed various conditions, among them that appellant abstain from using drugs and alcohol and, in connection with that condition, surrender his medical marijuana card. Defense counsel objected to that condition but, ultimately, appellant agreed to it in lieu of a jail sentence by the court and also waived his right of appeal.

Although he neither asked for nor obtained a certificate of probable cause, appellant now appeals from the sentence imposed, specifically the condition requiring nonuse of marijuana and the surrender of his medical marijuana card. We affirm. II. FACTUAL AND PROCEDURAL BACKGROUND In the late afternoon of July 29, 2008, two Fairfield police officers on bicycle patrol noticed two individuals, both of whom appeared to be under the age of 18, one of them appellant, passing a cigarette back and forth.

The officers stopped the youths and asked their ages; appellant responded that he was 19 (which he was) and the other youth that he was 16. It being a misdemeanor to smoke when one is under 18, or assist a person under 18 to do so (see § 308), the officers detained the two youths. They then asked both if either was carrying anything illegal. Appellant responded that he was carrying a gun. The officers then took that gun, a loaded .38-caliber Smith & Wesson revolver, from appellant’s front pants pocket. A records check revealed that the gun had been stolen in neighboring Vacaville the previous year.

Appellant told the officers that he did not know the gun was stolen, and that he and a friend (a friend he was either unable or unwilling to identify) had found it in “the bushes on Dana Drive” in Fairfield the week before and, since then, had taken turns carrying it because they could not keep it at their homes. Appellant later added that carrying the gun made him “feel safe,” and that he was afraid someone might try to attack him. On November 6, appellant signed, and his counsel approved, a “Waiver of Constitutional Rights and Declaration in Support of Defendant’s Motion to Change Plea” (hereafter waiver form).

In it, appellant agreed to plead no contest to the first count of the information, charging a

section 12025, subdivision (a)(2), offense with the prosecution dismissing the second count, charging a violation of

section 12031, subdivision (a)(1), albeit with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396].) The prosecution also agreed not to pursue any criminal charges against appellant for, four months earlier, embezzling $2,000 from his former employer, Mervyn’s.

Also in that document, appellant acknowledged that, at sentencing, he faced a maximum prison term of three years and then initialed the paragraph in the form reading: “Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court. [][] I give up my right of appeal.” (Original boldface.) Appellant also initialed the paragraph stating that his attorney had read and explained the entire form to him, which his counsel verified a few lines later. Appellant also signed the form at the end, as did the court.

Apparently sometime between December 1 and 10, appellant was interviewed by a deputy probation officer. In that interview, appellant revealed that he had been unemployed since losing his job at a Mervyn’s store four months before because of the embezzlement; he was attending community college, however. He also told the probation officer that he had suffered from migraine headaches since second grade, had “recently obtained a medical cannabis patient identification card,” and now smoked marijuana about four times a week, mainly at night before going to bed.

He further explained that he had first tried marijuana at age 16, but stopped using it when he got his first job at age 17 and when another drug appeared to be helping him, but then reverted to marijuana when he turned 19, i.e., over a year earlier. Appellant stated that he foresaw difficulty in abstaining from marijuana because it was the only substance that was able to manage his migraine headaches.

He was then told by that officer that his “probation terms and conditions will include abstention from drugs and alcohol while under probation supervision.” The probation officer’s report was received by the court on December 10, a week before appellant’s sentencing hearing on December 17. At that hearing, defense counsel objected to the drug abstention condition as inappropriate under the circumstances, and requested both that appellant be allowed to continue using marijuana and to keep his medical marijuana card during his probationary term.

After a pause to allow appellant and his counsel to confer, this continued to be appellant’s position. The court maintained that appellant had to choose between abiding by the probationary conditions in order to receive “ASP” (the alternative sentencing program agreed to by the parties and the court) or giving up “his freedom.” The court also added some other reasons for its decision, which we will note below. In any event, defense counsel then stated that appellant agreed to the “ASP” with the conditions noted, although counsel reiterated her objection to that choice.

Appellant then answered “Yes” to the court’s question if he agreed not to smoke marijuana and surrender his medical marijuana card as a condition of probation. The court’s final judgment and sentence included a restitution requirement regarding the Mervyn’s embezzlement and only a three-day jail term, satisfied by credit for time already served. Appellant was ordered to abstain from the use of alcohol and illegal drugs and agreed, both verbally and in writing, not to use marijuana while on probation and to surrender his medical marijuana card.

The following day, December 18, appellant filed a notice of appeal which specifically stated that he was appealing from “the sentence or other matters occurring after the plea . . . specifically (1) the court’s requirement that he choose between a jail sentence and being allowed to take marijuana for his medical condition pursuant to Health and Safety code

section 11362 et sec [szc]; (2) imposition of drug testing terms and (3) no drug/alcohol terms.” No certificate of probable cause was requested or secured, however. III. DISCUSSION Appellant’s position on appeal is essentially the same as that asserted at the sentencing hearing and in his notice of appeal, i.e., that the court erred in insisting that appellant had to choose between the conditions of probation recommended by the probation department, including giving up marijuana use and his medical marijuana card, or not receiving probation at all and thus serving a prison term.

The People contend that these arguments lack merit because (1) appellant waived his right to appeal by his written and verbal waiver of November 6, (2) appellant did not secure a certificate of probable cause before filing his appeal, and (3) the court did not abuse its discretion in imposing such a condition of probation for appellant, inasmuch as he specifically agreed to it at the December 17 sentencing hearing. Because we agree with the People’s final contention, we do not reach their other two.

The combination of several factors leads us to conclude that the trial court did not abuse its discretion in imposing the no-marijuana-use condition.

These factors include (1) appellant’s personal situation, including specifically his recent admitted embezzlement of money from his first employer and his apparent credibility problems, (2) his explicit agreement—both verbal and written—at his sentencing hearing to the now challenged probation condition in lieu of a possible prison sentence, (3) substantial appellate precedent supporting the imposition of such a condition, and (4) the provisions of two sections of the Health and Safety Code, sections 11362.795, subdivision (a) (§ 11362.795(a)), and 11357.

It has long been the law in California that a trial court is vested with substantial discretion in deciding the appropriate conditions of probation in any individual case. In December of last year, our Supreme Court, in an opinion authored by the Chief Justice, upheld a probation condition requiring a defendant who had pled guilty to two counts of DUI (driving under the influence) to notify his probation officer of the presence of any pets in his residence.

In so doing, the court summarized the applicable principles thusly: “ ‘Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure “[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.” [Citation.]’ [Citation.] Accordingly, the Legislature has empowered the court, in making a probation determination, to impose any ‘reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . .’ (Pen.

Code, § 1203.1, subd. (j).) Although the trial court’s discretion is broad in this regard, we have held that a condition of probation must serve a purpose specified in Penal Code

section 1203.1. [Citations.] If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. [Citation.] Additionally, at the sentencing hearing, a defendant can seek clarification or modification of a condition of probation. [Citations.] [f] We review conditions of probation for abuse of discretion. [Citations.] Generally, ‘[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .” [Citation.]’ [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]” (People v.

Olguin (2008) 45 Cal.4th 375, 379-380 [87 Cal.Rptr.3d 199, 198 P.3d 1], italics added (Olguin).) One of our sister courts has also summarized essentially these same principles in these words: “Section 1203.1 gives trial courts broad discretion to impose conditions of probation to foster rehabilitation of the defendant, protect the public and the victim, and ensure that justice is done. [Citations.] ‘A condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . .” [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.] As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. [Citation.]” (People v.

Jungers (2005) 127 Cal.App.4th 698, 702 [25 Cal.Rptr.3d 873]; see also 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, §§ 559, 560, and cases cited therein.) As noted above, at the time of his detention and arrest, appellant was carrying a loaded .38-caliber revolver while in the company of a 16-year-old friend. He had had that gun since, he told the police, he found it a week earlier in some bushes.

Later, he told the probation officer that the gun “made him feel safe and that he was afraid somebody might try to attack him,” that he had been shot at “about one week prior to finding the gun,” that he had shared it with a friend he was either unable or unwilling to identify, and that he was planning to give the gun to a female friend “to keep it safe for him.” At the time, appellant was out of work, having been discharged by Mervyn’s four months earlier for embezzling $2,000, and had committed to both that store and the Fairfield Police Department to repay that sum to the store.

The issue of appellant’s marijuana use never arose then; it arose for the first time at his interview with the probation officer, which apparently occurred a week or two before the December 17 sentencing hearing.

Appellant advised the officer that he had started using marijuana at age 16 because it helped his migraine headaches; he stopped the following year because he then “started his first job” and took a new medication “which appeared to manage his symptoms.” However, at age 19 (i.e., over a year earlier) he reverted to using marijuana “about four times a week” when the other prescription had apparently stopped working.

He took it “mainly at night before bedtime” and thus it did not “interfere with his school attendance [apparently Solano Community College] or performance.” The trial court was obviously concerned with the combination of appellant’s (1) recent embezzlement of monies and consequent loss of (apparently) his first job, (2) carrying a loaded .38-caliber revolver which had been stolen in a nearby town the preceding year, (3) admission to allowing another friend (whom he was unable to identify by either name or residence) to also carry the weapon, (4) plans to allow a female friend to do the same so as to “keep it safe for him,” and (5) regular use of marijuana.

In considering these factors, the court first made clear that it did not credit appellant’s version concerning how he came into possession of the gun. Then it added, in very much the same vein: “Well, here is my problem. If I put him in jail, he won’t be smoking his medical marijuana. This gentleman had a firearm, with a most implausible explanation for it, one that if he really expects the Court to believe this, he might as well ask me to believe in Santa Claus. [j[] I don’t believe any part of this, T found it in the trash or the bushes.’ I don’t believe one word of this.

This was a gun that was stolen less than a year ago out of Vacaville. He’s got it. A handgun like this is good for one thing, and that’s shooting somebody. So if he’s in a situation where he needs to have a gun to shoot somebody, he’s got real problems going on in his life, and smoking dope isn’t helping him. That’s the bottom line, [f] So I’m willing—I mean, he has a really, almost no criminal history. He’s a young man.

Obviously, he’s got potential, but he keeps smoking dope and carrying firearms, and he’s going to have a lot of problems in this life, if he lives very long. [][] If he can give me one good reason why he’s carrying this gun, I’d like to hear it. But I see what he told probation, and he may think that he’s sort of gaming them. ...[][] So I have every justification, if I wish to put him in jail for a while. I don’t really know that that would be the best solution here for this defendant. As I said, he’s a young man.

He obviously has made a mistake, and he’s made a couple of mistakes here recently, this mistake, the embezzlement that he is involved in, but it’s certainly not too late for him to get things turned around. He doesn’t have a serious record. In my opinion, smoking dope isn’t going to help any of this. ... [f] So if he wants to, you know, game the system, which I think is what’s really going on here with this medical marijuana for a headache.” A few minutes later the court twice offered to allow appellant to use Marmol, “but if he doesn’t want to do that, he doesn’t have to. You’re right.

So the choice is his.” As noted, appellant then specifically made such a “choice” and opted to agree to the no-marijuana condition and give up his medical marijuana card. This choice and agreement were then made explicit on the final page of the order of probation filed on December 17.

There, appellant affixed his signature underneath the statement: “The terms and conditions of probation have been explained to me and I fully understand them and agree in every particular to abide by them.” This statement—again, followed by appellant’s signature—appears directly beneath this handwritten condition: “Deft, agrees not to use marijuana while on probation. He also agrees to surrender medical marijuana card.” We agree with this exercise of the court’s discretion for four specific reasons, two of them based on the record and two based on the applicable statutes and cases interpreting them.

The first reason is that the trial court obviously felt—and we believe correctly—that considerable doubts had been raised regarding appellant’s credibility. The premises for these doubts were that (1) at age 17 or 18, he embezzled $2,000 from his first employer; (2) he claimed to have found a stolen and loaded .38-caliber Smith & Wesson “in the bushes” a few weeks earlier; and (3) he could not give the probation officer either the name or the address of the other youth with whom he had supposedly shared possession of the loaded gun.

These combined factors clearly led the court, quite justifiably we think, to doubt appellant’s “medical marijuana for a headache” claim. But another, separate, reason reinforces these doubts. Despite the fact that that issue was both inquired into by the probation officer and then discussed in that officer’s report to the court, no evidence or argument was offered, or for that matter even hinted at, to support appellant’s claims that he (1) had migraine headaches, (2) had consulted a doctor regarding them, and (3) used marijuana only at bedtime four times a week.

Thus, neither the letters from appellant’s parents, pastor, and a neighbor, nor even his own letters to the court, mention his use of marijuana, much less the reasons for it, i.e., alleged migraine headaches. Nor did appellant’s counsel offer to supply any such evidence to the court. Indeed, the only evidence anyplace in the record on this subject was a copy of the “recently obtained” medical marijuana card attached at the end of the deputy probation officer’s report.

Our dissenting colleague inexplicably ignores the “recently obtained” statement in the probation officer’s report, instead arguing that “there is no reason to assume from the date of the card that it was not a renewed card . . . .” (Dis. opn., post, at p. 871, fn. 3.) But there very clearly is: the express statement in the probation report that it was “recently obtained,” meaning, clearly, obtained just a few days prior to the early December interview with the probation officer, whose report regarding that interview was filed exactly a week prior to the December 17 hearing.

And appellant “recently obtained” it, notwithstanding his admission that he had been using marijuana for over a year, i.e., since turning 19 in September 2007. Further, there was clearly no acceptance by anyone of the “migraine headaches” rationale given by appellant to that officer. That officer said nothing one way or the other regarding her evaluation of appellant’s “migraine headaches” claim, but merely recorded what appellant was telling her.

And the deputy district attorney said nothing whatsoever on this subject at the December 17 hearing; indeed, she made only two short statements to the court, both regarding the ASP sentence alternative. Finally, the statements of the court, quoted above, clearly demonstrate its view on this subject.

The trial court was—and properly so, in our opinion—dubious regarding appellant’s credibility and thus apparently evaluated his “migraine headache” rationale in the same light as it evaluated the “found it in the bushes” story about the loaded gun he was carrying (a story offered by appellant both to the arresting police and to the deputy probation officer).

We suggest that, with regard to the “migraine headache” rationale, the trial court could also have been influenced by two points noted above: (1) the complete and total absence of any evidence of—or even discussion or argument about—any consultation by appellant with a physician about his alleged headaches, even in appellant’s and his parents’ letters to the court; and (2) the fact that his medical marijuana card was “recently obtained,” clearly meaning secured by appellant subsequent to his July arrest and November plea, i.e., just a few days before his interview with the probation officer and, at the most, two weeks before the sentencing hearing.

In sum, we find that this trial court clearly exhibited both a reasonable and a balanced perspective regarding appellant’s personal situation. On the positive side, it stressed his relative youth, his “doing well in school,” and the fact that he had “almost no criminal history.” It also offered, not once but twice, to allow appellant to take Marino! if that would aid in solving his claimed headache problems.

On the other side of the proverbial scale, the court was also clearly concerned about appellant’s credibility in some of the statements he had made to the arresting officers and the probation officer, his carrying of a loaded weapon “found ... in the bushes,” his admitted, and recent, embezzlement from his former employer, and his admitted on-and-off use of marijuana since age 16 and, very possibly, his extremely recent acquisition of a medical marijuana card.

After balancing all these considerations, the trial court determined that it would help in “basically straightening things out” and “being a productive member of the community” that he abstain from using marijuana while on probation. Thus, the trial court clearly and properly exercised its discretion. A third basis for our finding no abuse of discretion by the trial court rests on case law relevant to the type of specific condition involved here. The appellate courts of this state have traditionally interpreted the broad language of

section 1203.1, subdivision (j) (section 1203.l(j)), as justifying reasonable probationary conditions. These have regularly included conditions precluding the use of either alcohol or drugs during the term of probation. Thus, in People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 [90 Cal.Rptr.2d 77] (Balestra), a division of the Fourth Appellate District rejected an argument by a probationer who had pled guilty to one count of elder abuse and was granted probation subject to an alcohol- and drug-testing condition, that such a condition was improper. After quoting the critical language of

section 1203.l(j), the court held (rejecting earlier decisions from its district): “This court has recently demonstrated the correct deference to the trial court’s determination of appropriate conditions of probation, in a case where we rejected the argument, accepted in Kiddoo [one of those prior decisions], that a no-alcohol condition is somehow not ‘reasonable’: [][] ‘Although an argument can be made that Kiddoo is factually distinguishable from this case [citation], we disagree with the fundamental assumptions in Kiddoo that alcohol and drug abuse are not reasonably related ....[]□...

Whether the trial court determines to impose such a condition is thus within its sound discretion and, if it does, the defendant must either submit to the condition or, if she considers the condition “more harsh than the sentence the court would otherwise impose, [exercise] the right to refuse probation and undergo the sentence.” . . . [Citation.]’ [Citation.]” (Balestra, supra, 76 Cal.App.4th at pp. 68-69.) This court, in a decision joined in by our now dissenting colleague, cited Balestra approvingly. In People v.

Brewer (2001) 87 Cal.App.4th 1298, 1311 [105 Cal.Rptr.2d 293], superseded by statute on other grounds as noted in Good v.

Superior Court (2008) 158 Cal.App.4th 1494, 1504, 1510, fn. 13 [71 Cal.Rptr.3d 125], we described the general principles governing the review of conditions of probation as follows: “In granting probation, courts have broad discretion to impose conditions which aid in the ‘reformation and rehabilitation of the probationer.’ [Citations.] ‘A condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality____” ’ (People v.

Lent (1975) 15 Cal.3d 481, 486 [124 Cal.Rptr. 905, 541 P.2d 545] . . . .) If a probation condition serves the statutory purpose of ‘ “reformation and rehabilitation of the probationer,” ’ such condition is ‘ “reasonably related to future criminality” ’ and will be upheld even if it has no ‘ “relationship to the crime of which the offender was convicted.” ’ [Quoting Balestra.]” (People v. Brewer, supra, at p. 1311.) But perhaps the most pertinent authority here is People v. Bravo (1987) 43 Cal.3d 600 [238 Cal.Rptr. 282, 738 P.2d 336] (Bravo).

There, the defendant was convicted of possessing concentrated cannabis, and appealed on the ground that his home had been unlawfully searched because the police acted without a search warrant. The prosecution argued, apparently successfully in the trial court, that such a search was permissible because, after a previous conviction on the same charge, the defendant had been given probation subject to the express condition that his home and person could be searched without a warrant.

But the defendant contended such a search was invalid because it had to be based on “reasonable cause to believe he was currently involved in criminal activity.” (Id. at p. 604.) The appellate court reversed the defendant’s second conviction because, notwithstanding the search condition previously imposed, the search “was unreasonable by any standard.” (Ibid.) Our Supreme Court unanimously reversed the appellate court’s decision, holding that a search conducted pursuant to consent contained in a probation condition does not violate the Fourth Amendment.

In so holding, it addressed the general rule applicable to probation conditions imposed on a defendant that are later objected to by him or her; “A probationer, unlike a parolee, consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term.

Probation is not a right, but a privilege. ‘If the defendant considers the conditions of probation more harsh than the sentence the court would otherwise impose, he has the right to refuse probation and undergo the sentence. [Citations.]’ [Citations.]” (Bravo, supra, 43 Cal.3d at pp. 608-609, italics added.) The holding of Bravo is still very much the law in California. (See, e.g., People v.

Woods (1999) 21 Cal.4th 668, 675 [88 Cal.Rptr.2d 88, 981 P.2d 1019]; In re York (1995) 9 Cal.4th 1133, 1150 [40 Cal.Rptr.2d 308, 892 P.2d 804]; In re Tyrell J. (1994) 8 Cal.4th 68, 82 [32 Cal.Rptr.2d 33, 876 P.2d 519], overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128 [51 Cal.Rptr.3d 430, 146 P.3d 965]; People v.

Medina (2007) 158 Cal.App.4th 1571, 1576, fn. 2 [70 Cal.Rptr.3d 413].) More importantly, the holding of Bravo is directly pertinent to the contentions of our dissenting colleague, who argues that it is inappropriate to impose a nonuse-of-marijuana condition when, if appellant had not agreed to that condition, his alternative could well have been a jail term.

But, clearly, Bravo holds directly to the contrary, i.e., that it is entirely appropriate to require a prospective probationer to choose between such a condition of probation on the one hand and jail or prison on the other.* In short, these authorities make clear that the trial court did not, as our dissenting colleague suggests, impose a criminal sanction on appellant via the probation conditions at issue here. Further, a relatively new statute plainly supports the imposition of such a condition. Before the enactment of Health and Safety Code

section 11362.795(a), effective in 2004, the cases addressing whether a “don’t use marijuana” probation condition was appropriate since the passage of the CUA (see Health & Saf. Code, § 11362.5 et seq.) were not entirely consistent. However, the 2004 statute (§ 11362.795(a)) clearly permits the trial court to impose such a condition. It provides, in pertinent part: “(a)

(1) Any criminal defendant who is eligible to use marijuana pursuant to

Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail. [<0

(2) The court’s decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court, [f]

(3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.” (§ 11362.795(a).) Interestingly, no published appellate decision to date has discussed or even cited this provision (although a few unpublished ones have had occasion to consider it).

It was one of many provisions of an extended statute adopted by the Legislature in late 2003 (effective on Jan. 1, 2004) that purports to define and regulate the use of marijuana for medical purposes, including provision for the issuance and use of a medical marijuana card. (See Stats. 2003, ch. 875.) The only reasonable

interpretation of

section 11362.795(

a) is that a trial court has discretion to impose a no-marijuana-use probation condition on the holder of a medical marijuana card. This is so both because of the general law, discussed above, regarding the broad authority vested in a trial court regarding such matters and also because of the specific language of the statute. Thus, and quoting the first paragraph of

section 11362.795(a), since a trial court may “confirm” that the probationer is allowed to use marijuana while on probation, it would seem obvious that it may also not so “confirm.” Indeed, the following paragraph—a provision almost entirely ignored by the dissent—makes this clear by specifying what is required of the trial court, i.e., a “decision.” (§ 11362.795(a)(2).) Finally,

section 11362.795(a)(3)—also effectively ignored by the dissent— makes clear that, even now, appellant can attempt to resolve this matter to his satisfaction, i.e., by getting a physician’s written endorsement of his use of medical marijuana and then making a “request” to the trial court for a modification of the no-marijuana-use condition agreed to by appellant on December 17. As the record before us establishes, appellant’s trial counsel never invoked

section 11362.795(

a) before the trial court nor did the court mention the statute in indicating its “reasons for the decision” on the record. However, the exchange at the sentencing hearing partially quoted above effectively satisfies almost all of the requirements of subdivision (a)(1) and (2) of the statute. Further, the lack of any “entry ... in the minutes of the court” regarding its “reasons for the decision” (§ 11362.795(a)(2)) was waived in that court by the lack of any request therefore by appellant. And it is certainly waived now by the lack of any mention of the statute anywhere in appellant’s briefs to this court. The dissent appears to feel that we cannot rely on

section 11362.795 because the court did not “provide appellant notice of the need for and a reasonable opportunity to produce . . . evidence demonstrating that his use of marijuana satisfied the conditions of the CUA.” (Dis. opn., post, at p. 862; see also, to same effect, id. at pp. 869-872 & 887.) As noted above (see fn. 6, ante), it was not the responsibility of either the trial court or the prosecutor to (1) cite

section 11362.795 to appellant or his trial counsel, (2) invite them to present evidence of the “migraine headaches” rationale for the “recently obtained” medical marijuana card, or (3) suggest they consider making a “request” pursuant to

section 11362.795(a)(1) or (3) for a modification of the proposed probation condition. Such was the responsibility of appellant and his trial counsel and no one else. A few final points: First of all, the dissent seems to assume—principally from some of the legislative history of the 2004 Medical Marijuana Program Act (MMP)—that the entire purpose of the MMP was to liberalize the use of marijuana even further, and that nothing in it could conceivably have been intended to, even in the slightest way, address the subject of controls on the use of marijuana.

But as our Supreme Court has recently noted, the MMP was passed to “address issues not included in the [CUA], so as to promote the fair and orderly implementation of the [CUA] and to ‘[c]larify the scope and application of the [CUA].’ ” (People v. Mentch (2008) 45 Cal.4th 274, 290 [85 Cal.Rptr.3d 480, 195 P.3d 1061]; see also People v. Hochanadel (2009) 176 Cal.App.4th 997, 1013 [98 Cal.Rptr.3d 347]; County of Butte v.

Superior Court (2009) 175 Cal.App.4th 729, 732 [96 Cal.Rptr.3d 421].) Indeed, a case decided just a few months ago makes clear that various other provisions of the MMP were intended to and did impose additional controls on the use of marijuana. In City of Claremont v.

Kruse (2009) 177 Cal.App.4th 1153, 1172 [100 Cal.Rptr.3d 1] (City of Claremont), the court noted that: “[T]he MMP quantifies the amount of marijuana a qualified patient may possess [citation], provides that employers need not accommodate the medical use of marijuana [citation], and identifies places and circumstances where medical use of marijuana is prohibited [citation].” Presumably the dissent would likewise hold all of these provisions of the MMP unconstitutional. They clearly are not. More importantly, there is clearly no conflict between

section 11362.795’s provisions allowing a superior court to make a “decision” regarding a “no-marijuana” probation condition and Health and Safety Code

section 11362.5, subdivision (b)(1)(B). The latter

section simply declared that one of the purposes of the CUA was to “ensure that patients . . . who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” The MMP in general and

section 11362.795 in particular do not conflict with this stated purpose. No case cited by the dissent holds, or even suggests, that the imposition of a probation condition, especially one expressly agreed to, amounts to a “criminal sanction.” The holding of Tilehkooh (again, a decision rendered before the effective date of § 11362.795) was that a revocation of probation based on the use of marijuana was such a sanction and therefore subject to the defense provided by

section 11362.5. (Tilehkooh, supra, 113 Cal.App.4th at pp. 1441-1445.) That is not at all this case. Second, notwithstanding the CUA, under California law possession of marijuana is still illegal. (See Health & Saf. Code, § 11357 (section 11357); Fisher, supra, 96 Cal.App.4th at p. 1151; cf. also Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 928-929 [70 Cal.Rptr.3d 382, 174 P.3d 200].) Third, with regard to both the CUA and the MMP, any and all defenses to criminal charges filed against a defendant must be asserted and then established as affirmative defenses. (See, e.g., People v.

Wright (2006) 40 Cal.4th 81, 85, 93-94 [51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Mower (2002) 28 Cal.4th 457, 481-483 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; Fisher, supra, 96 Cal.App.4th at pp. 1151-1152; cf. also People v.

Lam (2004) 122 Cal.App.4th 1297, 1301 [19 Cal.Rptr.3d 431] [citing Fisher approvingly].) Although the dissent purports to acknowledge this principle (see dis. opn., post, at p. 870), it nonetheless consistently maintains that the prosecution and/or the court bore the burden of establishing some sort of illegitimacy regarding appellant’s “recently obtained” medical marijuana card before the relevant probation condition could be imposed. Fourth and finally, the assertion and establishment of the legal right to use medical marijuana is exactly what is authorized by

section 11362.795(a)(3), a provision, as already noted, almost totally ignored by the dissent, and not utilized by appellant either in December 2008 nor, apparently, at any time since then. In

summary, the combination of the provisions of Health and Safety Code sections 11357 and 11362.795 and the authorities cited above regarding the imposition of probation conditions, make it clear that there was nothing in the slightest “unlawful” or “unconstitutional” about the probation conditions imposed on, and explicitly agreed to by, appellant.

In view of all these considerations, the court did not abuse its discretion when it gave appellant the choice to accept conditions of probation requiring the nonuse of marijuana, surrender of his medical marijuana card, and agreement to be tested for drugs, or face jail or prison. Nor, especially in light of the language of sections 11357 and 11362.795(a), did this involve any improper or unlawful choice being forced on appellant. IV. DISPOSITION The judgment is affirmed. Richman, J., concurred. All further statutory references are to the Penal Code, unless otherwise noted.

All further dates are in 2008, unless otherwise noted. This clearly seems to be the period during which this interview took place, both because of the dates shown for the approval and filing of the report and because it has attached to it a copy of appellant’s medical marijuana card, “recently obtained” by him a few days before his interview with the deputy probation officer, i.e., on December 1, 2008.

We respectfully submit that the italicized sentence above responds adequately to our dissenting colleague’s assertion that: “Our high court has never suggested that a condition of probation that has no relationship to the crime of which the defendant is convicted, relates to conduct that is not itself criminal, and requires or forbids conduct that is not reasonably related to future criminality [citation] can nevertheless be legitimated by an ‘agreement’ of the sort appellant entered into with the trial court here.” (Dis. opn., post, at p. 875.) But, of course, that is precisely what the quoted holding from last year’s Olguin opinion does.

We will, hereafter, deal more specifically with the legal authority authorizing the type of probation conditions involved here.

Our dissenting colleague (1) argues that “[n]o witness disputed appellant’s statement that he suffers migraine headaches, which is specified in the [Compassionate Use Act] as an illness for which marijuana provides relief’ (dis. opn., post, at p. 869), (2) also argues that the trial court “expressed no interest in the validity of appellant’s medical marijuana card and never asked him to show that he genuinely suffered migraine headaches for which medical marijuana had been recommended or approved by a physician” (id. at p. 864) and “chose instead to avoid the question whether appellant’s use of medical marijuana was recommended or approved by a physician” (id. at p. 889), and (3) seems to assume that there was medical support for appellant’s claim of migraine headaches (see, e.g., id. at pp. 861, 871-872).

All of these contentions and assumptions put the shoe on the wrong foot: no one produced—or even offered to produce—any evidence that appellant suffered from migraine headaches, nor was the word “physician” ever uttered by appellant or his counsel at the sentencing hearing or mentioned in any of the letters provided to the court on appellant’s behalf. As discussed further post, the CUA (Compassionate Use Act of 1996; Health & Saf. Code, § 11362.5) provides, and provides only, affirmative defenses to issues such as these. (See People v.

Fisher (2002) 96 Cal.App.4th 1147, 1151-1152 [117 Cal.Rptr.2d 838] (Fisher).) In his criticism of the trial court’s imposition of the probation condition, our dissenting colleague never mentions its “Marmol option” offer.

We thus respectfully suggest that our dissenting colleague is quite mistaken when he summarizes our holding of no abuse of discretion by stating that it is based on appellant’s agreement to the condition and on the basis that “appellant had the burden of proving his eligibility to use medical marijuana and failed to sustain it. . . .” (Dis. opn., post, at p. 860.) As the preceding portions of our opinion make clear, our finding of no abuse of discretion is based on much more than this. Balestra was specifically cited approvingly by our Supreme Court in December 2008 in Olguin, supra, 45 Cal.4th at page 379.

In People v. Peck (1996) 52 Cal.App.4th 351, 361-363 [61 Cal.Rptr.2d 1], the appellate court also emphasized that “[b]ecause probation is a privilege and not a right [citation], a probationer is not entitled to the same degree of constitutional protection as other citizens. Accordingly, even a probation condition which infringes a constitutional right is permissible where it is ‘ “necessary to serve the dual purpose of rehabilitation and public safety.” ’ [Citation.]” (Id. at p. 362.) We find nothing at all contrary in Justice Arabian’s concurring opinion in People v.

Welch (1993) 5 Cal.4th 228, 238-241 [19 Cal.Rptr.2d 520, 851 P.2d 802] (conc. opn. of Arabian, J.).

In that case, the court unanimously agreed that the failure of a defendant to challenge the reasonableness of a probation condition “proposed at the probation and sentencing hearing constitutes a waiver of the claim on appeal.” (Id. at p. 230.) In his brief concurring opinion, Justice Arabian, joined by Justice Kennard, agreed, but added that the imposition of such conditions should not (1) violate “procedural due process” (such as when imposed without a probation department’s report in misdemeanor cases), (2) be imposed with any “vindictiveness,” or (3) apply as and when “legal error is demonstrable.” (Id. at pp. 238-240 (conc. opn. of Arabian, J.).) In so doing, Justice Arabian not only wrote nothing contrary to our holding, he specifically expressed himself as supportive of it by stating: “If the trial court determines in the proper exercise of its discretion that it cannot achieve the rehabilitative goals of probation without imposing an objectionable condition, then it will be fully justified in denying probation on that basis if the defendant declines to accept it.” (Id. at p. 239 (conc. opn. of Arabian, J.).) We fully agree with this statement.

Compare Balestra, supra, 76 Cal.App.4th at pages 68-69 and People v. Bianco (2001) 93 Cal.App.4th 748, 752-754 [113 Cal.Rptr.2d 392] with People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1440-1447 [7 Cal.Rptr.3d 226] (Tilehkooh). Further, and regarding Tilehkooh, the dissent’s extended reliance on the holding of that case (see dis. opn., post, at pp. 865-866) ignores the fact that it was decided before the effective date of Health and Safety Code

section 11362.795(a), i.e., when the only relevant statute was Health and Safety Code

section 11362.5. The holding of Tilehkooh is, therefore, of questionable validity when applied contrary to the express terms of the 2004 statute. The dissent appears to contend that the term “confirm” in

section 11362.795(a)(1) means that the entire subdivision should be interpreted negatively to the imposition of a no-marijuana-use probation condition, and in so doing focuses almost entirely on the term “confirm.” (See dis. opn., post, at p. 886.)

Section 11362.795(a), quoted in full above, requires the court to initially make a “decision” regarding whether to grant a probationer’s initial “request that the court confirm that he ... is allowed to use medical marijuana while ... on probation,” then enter its reasons for that “decision” in the court’s record, and thereafter also consider a “request” for modification of a previous negative decision if, as and when such a request is supported by a “recommend[ation]” of a “physician.” This language totally undermines the dissent’s argument. Put another way, after the adoption of

section 11362.795(

a) in 2004, the suggestion that the 1996 CUA precludes a trial court from imposing a “no-marijuana” probation condition is simply untenable. The fact of the matter is that appellant can do precisely that at any time during his “period of probation” (§ 11362.795(a)(3)), i.e., right now. This obvious option is dealt with nowhere in the dissenting opinion. The first MMP-imposed limitation cited by the City of Claremont court is found in Health and Safety Code

section 11362.77, subdivisions (

a) and (b), which limits the amount of marijuana a “qualified patient” can possess to “no more than eight ounces of dried marijuana” and “no more than six mature or 12 immature marijuana plants” if there is no doctor’s recommendation that these amounts are insufficient to meet the patient’s needs. (Ibid.) Consistent with the City of Claremont court’s implicit holding that these additions to marijuana regulation made by the MMP are perfectly permissible, in County of San Diego v.

San Diego NORML (2008) 165 Cal.App.4th 798, 828-831 [81 Cal.Rptr.3d 461], a panel of the Fourth Appellate District held that the MMP did not “improperly amend” the CUA regarding the whole identification card procedure. It held: “The MMP, in effect, amended provisions of the Health and Safety Code regarding regulation of drugs adopted by the Legislature, not provisions of the CUA.

Because the MMP’s identification card program has no impact on the protections provided by the CUA, we reject [the] claim that those provisions are invalidated by . . . the California Constitution.” (165 Cal.App.4th at p. 831.) Just so here. The issue of the interaction between the CUA and the MMP, and the extent to which the latter could and did constitutionally affect the former, is involved in two now unpublished decisions of our sister court now under review by our Supreme Court. (See People v. Kelly (2008) 163 Cal.App.4th 124 [77 Cal.Rptr.3d 390], review granted Aug. 13, 2008, S164830; People v.

Phomphakdy (2008) 165 Cal.App.4th 857 [81 Cal.Rptr.3d 443], review granted Oct. 28, 2008, S166565.) In attempting to apply the holding of Tilehkooh to the present fact situation, the dissent suggests that there is essentially no difference between the imposition of a probation condition and the revocation of probation. (See dis. opn., post, at p. 866.) But this seems to fly squarely in the face of both the relevant statutes and our Supreme Court’s

interpretation of them. Thus,

section 1202.7 provides that factors such as the “reintegration of the offender into the community” and “the needs of the defendant shall be the primary considerations in the granting of probation.” (§ 1202.7; see also § 1203.l(j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 [43 Cal.Rptr.2d 681, 899 P.2d 67], applying those statutes.) See dissenting opinion, post, at pages 860, 873, 874-875, 884, 887.